The demurrers were sustained by the judge on the theory that a prior foreclosure proceeding was valid and prevented the maintenance of the present one. After stating that it was agreed by counsel that the case would turn on the validity or invalidity of such prior proceeding the judge further recites: "And it was agreed that the court might consider, on thedemurrer [italics supplied] the foreclosure proceedings referred to." It seems clear that when counsel for plaintiff so agreed, it had the full effect or was the equivalent of amending his proceeding *Page 66 to show such prior one. Otherwise, of course, the demurrer could not reach it. Thus it was more than mere profert of an independent document. It in effect incorporated another well-identified proceeding in this same court of record in the petition being considered. The order of the judge so solemnized it. The proceeding was in writing, was in court before the parties and the judge. There was no uncertainty about it. It was brought to this court, in the bill of exceptions duly certified. It is before us. Everything happened except that it was not physically attached to the plaintiff's petition or marked filed. If it was to be considered by the judge on demurrer and was to control the case, what else could have been intended? We know, without question, that is what the judge passed upon. The parties so treat it; and yet, under the majority opinion, something altogether different from that is being reviewed by this court — something not passed upon by the judge. Necessity for regularity and orderliness in pleadings and for rules so to provide is recognized; but even under the cases cited in the majority opinion no rule seems to be violated by treating this as did the judge. Thus we have the true record before us and refuse to look at it, instead passing upon a case wholly different from that considered by the judge.
Aside from the foregoing view, it might also be considered that the court was authorized and empowered by the agreement recited to treat the allegations of the petition together with what was shown by this other proceeding as true, and to enter a final judgment disposing of the case. It was specifically agreed that the case would turn on its validity or invalidity. When parties to litigation are willing to thus bring out all the facts and simplify their causes, they should be aided and encouraged and not thwarted in their efforts. It is not intended in this dissent to disagree to what is said in the opinion on the merits, but as to the propriety of passing on this question without considering the prior proceeding referred to.